Mohd Shahril Bin Abdul Rahman V Ahmad Zulfendi Bin Anuar

36 Malayan Law Journal [2021] 12 MLJ
Mohd Shahril bin Abdul Rahman v Ahmad Zulfendi bin A

Anuar
HIGH COURT (IPOH) — CIVIL APPEAL NO AA-12BNCvC-2–01 OF B

2020
SU TIANG JOO JC
14 JUNE 2021
Tort — Road accident — Appeal against quantum and liability C

— Contributory negligence — Plaintiff had no driving licence, road tax and
insurance policy against third party risks — Whether plaintiff was entitled to relief
from court — Whether award of future loss of earnings and loss of earning capacity
was justified — Whether apportionment of liability should be varied
D
This was an appeal by the appellant (‘defendant’) and a cross-appeal by the
respondent (‘plaintiff ’) against the decision of the sessions court judge (‘SCJ’)
in a running down claim. The plaintiff ’s version of events was that he was
riding his motorcycle from the Tapah Road on the way to Langkap and upon
reaching the 30KM mark of Jalan Langkap — Kampar, he stopped at a E
T-Junction and after ensuring there were no vehicles from the direction of
Kampar, he came out of the junction. The plaintiff pleaded that after he came
out and while he was on the main road to Langkap, the defendant who was
driving a motor car travelling in the direction of Kampar suddenly at great
speed made a U-turn in the opposite direction, entered the plaintiff ’s right of F
way and collided with the front right part of the plaintiff ’s motorcycle causing
the plaintiff to fall and suffer serious injuries. The plaintiff claimed that the
accident was caused wholly and or substantially by the negligence of the
defendant. The defendant, on the other hand, provided a very different version
of how the accident occurred. The defendant denied that he made any U-turn. G
Instead, he was driving straight heading home towards Langkap/Teluk Intan
from Kampar when the plaintiff suddenly came out of the junction, without
first stopping to ascertain that it was safe to do so, and rode into the defendant’s
right of way causing the defendant to collide with the plaintiff without any
opportunity to prevent the accident. According to the defendant, the accident H
was caused wholly by the plaintiff and or contributed by the negligence of the
plaintiff. The SCJ accepted the version of the plaintiff that the defendant had
made a U-turn and was 70% to blame for the ensuing accident. The SCJ also
found that the accident would not have occurred but for the contributory
negligence of the plaintiff for riding his motorcycle too fast. On this, the SCJ I
found that the extent of the plaintiff ’s contributory negligence was 30%. Both
the defendant and plaintiff appealed against the finding of liability by the SCJ.
The present court, had to determine whether the plaintiff, who at the time of
the accident had no driving license, no motor vehicle license (or road tax) and
Mohd Shahril bin Abdul Rahman v Ahmad Zulfendi bin
[2021] 12 MLJ Anuar (Su Tiang Joo JC) 37
A no policy of insurance against third party risks should be entitled to any relief
from the court.
Held, allowing the appeal and dismissing the cross-appeal with costs:
B (1) The plaintiff had been riding a motorcycle for at least eight years without
a license until the time of the accident. The plaintiff knew that riding
without a license, road tax and insurance cover was against the law and in
any event, ignorance of the law was no defence. Therefore, the court was
driven to infer that the plaintiff was wilfully indifferent to the dictates of
C the legal requirements for riding a motorcycle on the road. A denial of the
claim in whole or in part would serve the underlying purpose of ensuring
that only qualified drivers who have undergone a competency test as to
qualify for a license and who have in force a policy of insurance against
any third party risks before they were permitted to drive. Also, a denial of
D such a claim, in whole or in part, would serve to instil a sense of
responsibility to all drivers to be armed with a mentality that laws were to
be obeyed at all times (see paras 37, 56 & 58).
(2) Although the defendant was more to be blamed for the accident, with the
E plaintiff having no policy of insurance for his motorcycle at the time of
the accident, no motor vehicle licence and with him riding a motorcycle
with no driving licence, thus, showing his contumacious disregard for the
law, in the greater interest of the law, the court held that the liability of the
plaintiff was to be increased by 30%. In the upshot, liability as between
F the plaintiff and the defendant was apportioned at 40:60. Although the
defendant may be held to be principally to be blamed for the tort of
negligence leading to the accident, the liability to be apportioned to the
plaintiff may exceed 50% by reason of, inter alia, contributory negligence
on the part of the plaintiff (see paras 60–61 & 63).
G (3) Having perused the materials and in particular the evidence on record,
the court was of the view that the ground of appeal set out in the
defendant’s memorandum of appeal that the SCJ had erred in both fact
and law in awarding loss of future earnings of RM192,000 although there
was inconsistent and no credible evidence led by the plaintiff, was well
H made out. In determining loss of future earnings, there must be evidence
of a real and substantial loss which must not be remote and speculative.
The court found that the story presented by the plaintiff that he was
working for AYTN D Touch at a salary of RM2,500 to be incredible. The
plaintiff could have easily presented his bank statement, which he said he
I could, to prove that he had been receiving payments but he did not. An
adverse inference ought to have been drawn against him by the SCJ
pursuant to s 114(g) of the Evidence Act 1950. The SCJ: (a) misdirected
himself on the evidence; (b) failed to judicially appreciate the evidence;
(c) failed to consider material evidence; (d) was probably unduly swayed
by the medical condition presented by the plaintiff in court which is A

irrelevant on the issue of whether the plaintiff was in fact gainfully
employed as to render the decision wholly erroneous; and
(e) misapprehended the facts and by reason thereto, appellate
interference was warranted. Based upon the evidence and the adverse
inference that ought to have been drawn, the court found that there was B
no credible evidence produced to prove that the plaintiff was receiving
earnings by his own labour or other gainful activity before he was injured
as statutorily required pursuant to s 28A(2)(c)(i) and (2)(c)(ii) of the
Civil Law Act 1956 (‘the CLA’). Accordingly, the award on loss of future
C
earnings was set aside altogether (see paras 80, 82, 84 & 87–88).
(4) As for the loss in earning capacity, based upon the medical reports, there
was no mention that the plaintiff could not work if the recommended
follow-up treatment was undertaken. As there was no evidence of a real
and substantial loss as required by s 28A(2)(c)(i) and (2)(c)(ii) of the D
CLA, the claim for loss of earning capacity must similarly fail (see
paras 89 & 91).
[Bahasa Malaysia summary

Ini adalah rayuan oleh perayu (‘defendan’) dan rayuan silang oleh responden E
(‘plaintif ’) terhadap keputusan hakim mahkamah sesyen (‘HMS’) dalam
tuntutan pelanggaran. Versi kejadian plaintif adalah bahawa beliau
menunggang motosikalnya dari Jalan Tapah dalam perjalanan ke Langkap dan
apabila tiba di penanda 30 KM Jalan Langkap — Kampar, beliau berhenti di
Simpang-T dan setelah memastikan tidak ada kenderaan dari arah Kampar, F
beliau keluar dari persimpangan tersebut. Plaintif memplidkan bahawa setelah
beliau keluar dan semasa beliau berada di jalan utama ke Langkap, defendan
yang memandu sebuah motokar yang menuju ke arah Kampar dengan lajunya
tiba-tiba membuat pusingan-U ke arah yang bertentangan, memasuki jalan
plaintif berada dan bertembung dengan bahagian depan kanan motosikal G
plaintif menyebabkan plaintif terjatuh dan mengalami kecederaan serius.
Plaintif mendakwa bahawa kemalangan tersebut adalah disebabkan
sepenuhnya atau sebahagian besarnya oleh kecuaian defendan. Sebaliknya,
defendan memberikan versi yang sangat berbeza mengenai bagaimana
kemalangan tersebut terjadi. Defendan menafikan bahawa beliau membuat H
pusingan-U. Sebaliknya, beliau memandu terus menuju ke rumah melalui
Langkap/Teluk Intan dari Kampar apabila plaintif tiba-tiba keluar dari
persimpangan, tanpa berhenti terlebih dahulu untuk memastikan bahawa ia
selamat untuk melakukannya, dan menunggang ke arah jalan defendan berada
menyebabkan defendan bertembung dengan plaintif tanpa peluang untuk I
mengelakkan kemalangan tersebut. Menurut defendan, kemalangan itu
disebabkan sepenuhnya oleh plaintif dan atau disebabkan oleh kecuaian pihak
plaintif. HMS menerima versi plaintif bahawa defendan telah membuat
pusingan-U dan 70% harus disalahkan atas kemalangan yang terjadi. HMS
A juga mendapati bahawa kemalangan tersebut tidak akan terjadi jika tidak
kerana kecuaian pihak plaintif kerana menunggang motosikalnya terlalu laju.
Oleh yang demikian, HMS mendapati bahawa tahap kecuaian sertaan plaintif
adalah 30%. Kedua-dua defendan dan plaintif merayu terhadap dapatan
liabiliti oleh HMS. Mahkamah semasa, harus menentukan sama ada plaintif,
B yang mana pada waktu kemalangan tersebut tidak memiliki lesen memandu,
tidak ada lesen kenderaan bermotor (atau cukai jalan) dan tidak ada polisi
insurans terhadap risiko pihak ketiga yang harus berhak mendapat relif dari
mahkamah.
C Diputuskan, membenarkan rayuan dan menolak rayuan silang dengan kos:
(1) Plaintif telah menunggang motosikal sekurang-kurangnya lapan tahun
tanpa lesen sehingga waktu kemalangan. Plaintif tahu bahawa
menunggang tanpa lesen, cukai jalan dan perlindungan insurans adalah
D bertentangan dengan undang-undang dan dalam keadaan apa pun,
pengabaian terhadap undang-undang bukanlah pembelaan. Oleh itu,
mahkamah dibawa untuk membuat kesimpulan bahawa plaintif sengaja
tidak peduli untuk mematuhi pada keperluan perundangan bagi
menunggang motosikal di jalan raya. Penolakan tuntutan secara
E keseluruhan atau sebahagian akan memenuhi tujuan asas untuk
memastikan bahawa hanya pemandu yang berkelayakan yang telah
menjalani ujian kecekapan bagi memenuhi syarat untuk mendapatkan
lesen dan yang telah menguatkuasakan polisi insurans terhadap risiko
pihak ketiga sebelum mereka dibenarkan memandu. Juga, penolakan
F tuntutan tersebut, secara keseluruhan atau sebahagian, akan
membangkitkan rasa tanggungjawab kepada kesemua pemandu untuk
mempunyai mentaliti bahawa undang-undang harus dipatuhi pada
setiap masa (lihat perenggan 37, 56 & 58).
G (2) Walaupun defendan seharusnya lebih banyak dipersalahkan atas

kemalangan tersebut, dengan plaintif tidak mempunyai polisi insurans
untuk motosikalnya pada waktu kemalangan, tidak ada lesen kenderaan
bermotor dan dengan beliau menunggang motosikal tanpa lesen
memandu, dengan itu, menunjukkan pengabaiannya terhadap
H undang-undang, demi kepentingan undang-undang, mahkamah
memutuskan bahawa liabiliti plaintif harus ditingkatkan sebanyak 30%.
Hasilnya, liabiliti antara plaintif dan defendan berkadaran pada 40:60.
Walaupun defendan boleh dianggap bertanggungjawab secara utama atas
kesalahan kecuaian yang menyebabkan kemalangan tersebut, liabiliti
I yang akan dikadarkan kepada plaintif boleh melebihi 50% dengan
alasan, antara lain, kecuaian sertaan pihak plaintif (lihat perenggan
60–61 & 63).
(3) Setelah membaca dengan teliti bahan-bahan dan khususnya keterangan
pada rekod, mahkamah berpendapat bahawa alasan rayuan yang
dinyatakan dalam memorandum rayuan defendan bahawa HMS telah A

terkhilaf pada fakta dan undang-undang dalam memberikan kehilangan
pendapatan akan datang sebanyak RM192,000 walaupun ia tidak
konsisten dan tidak ada keterangan yang boleh dipercayai dibawa oleh
plaintif, telah dibuat dengan baik. Dalam menentukan kehilangan
pendapatan akan datang, ia haruslah ada keterangan kerugian nyata dan B
besar yang tidak terpencil dan spekulatif. Mahkamah mendapati bahawa
kejadian yang disampaikan oleh plaintif bahawa beliau bekerja untuk
AYTN D Touch dengan gaji sebanyak RM2,500 tidak boleh dipercayai.
Plaintif seharusnya dengan mudah dapat mengemukakan penyata
C
banknya, yang menurutnya boleh, untuk membuktikan bahawa beliau
telah menerima pembayaran tetapi beliau tidak. Anggapan bertentangan
yang harus dibuat terhadapnya oleh HMS berdasarkan s 114(g) Akta
Keterangan 1950. HMS telah: (a) salah arah pada keterangan; (b) gagal
menilai keterangan secara kehakiman; (c) gagal mempertimbangkan D
keterangan material; (d) mungkin terpengaruh oleh keadaan perubatan
yang dikemukakan oleh plaintif di mahkamah yang tidak relevan dengan
isu sama ada plaintif sebenarnya bekerja dengan membuat kekhilafan
dalam keputusan; dan (e) salah memahami fakta dan dengan alasan
tersebut, campur tangan rayuan diperlukan. Berdasarkan keterangan dan E
anggapan bertentangan yang seharusnya dibuat, mahkamah mendapati
bahawa tidak ada keterangan yang boleh dipercayai yang dikemukakan
dalam membuktikan bahawa plaintif menerima pendapatan dengan
tenaga kerja sendiri atau aktiviti lain yang bergaji sebelum beliau
mengalami kecederaan sebagaimana menurut undang-undang yang F
ditetapkan oleh s 28A(2)(c)(i) dan (2)(c)(ii) Akta Undang-Undang Sivil
1956 (‘AUUS’). Oleh itu, award atas kehilangan pendapatan akan datang
diketepikan sama sekali (lihat perenggan 80, 82, 84 & 87–88).
(4) Atas kehilangan keupayaan memperoleh pendapatan, berdasarkan
laporan perubatan, tidak disebutkan bahawa plaintif tidak dapat bekerja G
sekiranya rawatan lanjutan yang dicadangkan dilakukan. Oleh kerana
tidak ada keterangan kerugian yang nyata dan besar seperti yang
ditetapkan oleh s 28A(2)(c)(i) dan (2)(c)(ii) AUUS, tuntutan untuk
kehilangan keupayaan memperoleh pendapatan harus juga gagal (lihat
perenggan 89 & 91).] H
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(refd)
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another appeal [2020] 1 MLJ 689; [2019] 9 CLJ 153, FC (refd)
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Government of Malaysia & Anor [1994] 1 MLJ 394; [1994] 1 CLJ 321, SC
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Krishnan a/l Perumal & Anor Ismail bin Haji Abdul Rani & Rakan t/a Ismail bin
D Ent v Yang Cheng Choy & Anor [2010] MLJU 493; [2010] 1 LNS 436, CA
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E (refd)
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ
97; [2003] 1 MLRA 95; [2003] 2 CLJ 19; [2003] 2 AMR 357, CA (refd)
Lee Nyan Hon & Bros Sdn Bhd v Metro Charm Sdn Bhd [2009] 6 MLJ
450; [2009] 6 CLJ 626, CA (refd)
F Lim Chor Ching & Ors v Idris Abdul Karim & another appeal [1998] MLJU
666; [1998] 3 CLJ Supp 145, HC (refd)
Maimunah bte Hassan (sebagai wakil harta pusaka Rozita bte Khamis) & satu
lagi lwn Marimuthu s/o Samanathan & satu lagi [1993] 1 CLJ 119, HC (refd)
Malayan Banking Bhd v Neway Development Sdn Bhd & Ors [2017] 5 MLJ
G 180, FC (refd)
Malaysia National Insurance Sdn Bhd v Abdul Aziz bin Mohamed Daud [1979]
2 MLJ 29, FC (distd)
Master Jaya Environmental Sdn Bhd v Pentas Flora Sdn Bhd [2020] 2 MLJ
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MLJU 747; [2007] 1 LNS 561, HC (refd)
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Khairulazuin [2020] 10 MLJ 238; [2020] 5 CLJ 807, HC (refd)
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mati, Muhammad Nor Shahril bin Abdullah) v Suhaimi bin Che Ismail A
(mendakwa sebagai bapa yang sah dan tanggungan kepada si mati, Muhamad
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I
Legislation referred to
Civil Law Act 1956 s 28A, 28A(2)(c)(i), (2)(c)(ii)
Evidence Act 1950 ss 103, 114(g)
Motor Vehicles Act 1988 [IN] ss 2(10), 3(1)
A Road Traffic Act 1961 [IR] s 18(1)

Road Transport Act 1987 ss 15, 23, 26, 26(1), 90
K Selvanayagam (Nuramni Fatira bt Mohd Nizam with him) (Kenneth William
& Assoc) for the appellant.
B T Manoharan (Nik Muhammad Syafiq bin Nik Hilmi and Muhammad Wafi bin
Abdullah with him) (Ong & Partners) for the respondent.
Su Tiang Joo JC:
C Query: In a running down action, should the plaintiff who at the time of the
accident had no driving license, no motor vehicle license (or commonly known
as road tax) and no policy of insurance against third-party risks be entitled to
any relief from the court?
D INTRODUCTION
[1] This is an appeal by the appellant who was the defendant in the court
below and a cross-appeal by the respondent who was the plaintiff against the
E whole of the decision of the sessions court judge (‘SCJ’) given on 27 December
2019 in a running down claim. In this judgment the parties shall be referred to
as they were in court below.
[2] Liability was apportioned with 70% cast upon the defendant and 30%
F onto the plaintiff.
[3] Each party contends that the other party ought to be found wholly
liable for the accident.
G
[4] As a result of the accident, the plaintiff suffered serious personal
injuries.
[5] The sessions court’s award of future loss of earnings and loss of earning
H capacity in favour of the plaintiff was assailed by the defendant as being baseless
and speculative whereas the plaintiff attacked it on the ground that there was
too much deduction for living expenses.
[6] After hearing parties, on 6 May 2021 this court pronounced its brief
I decision which is subject to amplification, that:
(a) on the issue of liability, the court agrees with the learned trial SCJ that
the accident was in the main caused by the defendant and the LTJ’s
apportion of liability at 70:30 premised upon the evidence is fair.
(b) however, by reason of the plaintiff not having any motor insurance A
policy on foot, no motor and driving license at the time of the accident
and with him having been riding without a license for many years, the
court denies the plaintiff his full entitlement to 70% liability on the part
of the defendant and will discount the same by a further 30%;
B
(c) accordingly, the defendant’s appeal is allowed, with the decision of the
SCJ varied with liability to be apportioned as between defendant and
plaintiff at 40:60;
(d) the court concludes that in a running down action, the plaintiff who at
the time of the accident had no riding license, no road tax and more C
importantly, no policy of insurance against third-party risks ought not
to be entitled to relief, in whole or in part as may be determined by the
court based upon the considerations that obtain in the Patel v Mirza test
laid down by the UK Supreme Court and reported in [2017] 1 All ER
191 and which has been adopted by our courts in Malaysia in a variety D
of cases;
(e) on the issue of quantum of damages, the defendant’s appeal against loss
of future earnings is allowed and the decision by the sessions court on
this award is set aside;
E
(f) the plaintiff ’s cross-appeal on the issue of both liability and quantum is
dismissed;
(g) with the defendant having succeeded substantially in his appeal as well
as against the plaintiff ’s cross-appeal, the decision of costs by the SCJ is
F
set aside with costs of this appeal by the defendant and the cross-appeal
by the plaintiff to be borne by the plaintiff. For the avoidance of any
doubt, there is no order for costs in the sessions court; and
(h) after hearing parties with the defendant/appellant seeking costs of
RM10,000 for this appeal and the plaintiff/respondent offering G
RM3,000, this court awarded costs of RM10,000 subject to allocatur, to
the defendant.
[7] Dissatisfied, by notice of appeal dated 17 May 2021, the plaintiff

appeals to the Court of Appeal and the following are the full grounds of H
judgment for the decision made.
BACKGROUND FACTS
Diametrically opposing stories I
[8] The plaintiff pleaded that on 5 July 2018 at about 2am, he was riding
his motorcycle registration number AFM 2979 from the Tapah Road on the
way to Langkap and upon reaching the 30KM mark of Jalan Langkap-Kampar,
A he stopped at a T-Junction and after ensuring there were no vehicles from the
direction of Kampar, he came out of the junction (encl 5, pp 4–5).
[9] The plaintiff further pleaded that, however, after he came out and while
he was on the main road to Langkap, the defendant driving motor car with
B registration number ADA 5558 and travelling in the direction of Kampar
suddenly at great speed made a U-turn in the opposite direction, entered the
plaintiff ’s right of way and collided with the front right part of the plaintiff ’s
motorcycle causing the plaintiff to fall and suffer (serious) injuries (encl 5,
pp 4–5 para 3).
C
[10] The plaintiff claimed that the accident was caused wholly and or
substantially by the negligence of the defendant (encl 5, pp 4–5 para 5).
[11] The defendant, on the other hand, had a very different version of how
D
the accident occurred.
[12] According to the defendant, the accident was caused wholly by the
plaintiff and or contributed by the negligence of the plaintiff himself (encl 5,
E p 13, para 5).
[13] In summary, the defendant denied that he made any U-turn. Instead, he
was driving straight heading home towards Langkap/Teluk Intan from Kampar
when the plaintiff suddenly came out of the junction, without first stopping to
F ascertain that it was safe to do, and rode into his (the defendant’s) right of way
causing the defendant to collide with the plaintiff without any opportunity to
prevent the accident.
No eye-witness to the accident

G
[14] Save for the plaintiff and the defendant, there were no other
eyewitnesses to the early morning 2am accident.
Sketch plan and key

H
[15] The sketch plan of the scene of the accident and its key (encl, 6
pp 17–18, exh P1 and P1(k)) is re-produced here to better assist in
understanding the grounds of this judgment:
I
I
H Investigating officer’s testimony
[16] The Investigating Officer, Sergeant Muhammad Amir Asyraf bin Mohd
Zura (PW1) testified vide his witness statement that from his investigation and
I from the debris from the accident and marks on the road he concluded that the
accident occurred on the right of way of the plaintiff because that is the right of
way of vehicles coming out from the junction from Tapah. Any vehicles
coming from Kampar should not make a U-turn to enter the right of way of
vehicles coming out of the junction from Tapah.
[17] However, he had classified the case as ‘Refer to Magistrate’ because the A
defendant’s version was that he was travelling straight from Kampar (encl 5,
pp 19–20, Q&A 14– 15).
[18] In other words, based upon the available evidence, he (PW1) was
unable to conclude whose version was the truth, see his testimony under B
cross-examination in encl 10, pp 30–32 where he testified as follows:
S: Di sini, kita ada dua versi: bukan versi berlainan, tapi versi bercanggah mengikuti
arah perjalanan?
J: Ya C
S: Yang pertama, kita melihat penunggang motorsikal: beliau kata beliau keluar
daripada simpang sebelah kanan hendak ke bawah di sebelah Teluk Intan.
Kemudian kereta, dari arah bawah telah membuat satu U-turn dan melanggar
beliau. Itu adalah versi Plaintif iaitu motorsikal? D
J: Betul
S: Versi pemandu kereta, beliau dari atas hendak pergi terus ke bawah. Dan
motorsikal keluar daripada simpang dan beliau berlanggar. Betul ya?
J: Betul, Tuan. E
…
J: Kedua-dua laporan bercanggah, dari segi versi arah perjalanan, dan saya tak dapat
putuskan mana arah yang betul sebab tiada saksi bebas.
S: Betul. Tak boleh tentukan siapa bersalah, kereta atau motor. Cuma kata kita tak F
dapat menentukan bagaimana kemalangan berlaku, dan kita RTM. Betul Sarjan?
J: Betul.
TRIAL COURT’S FINDINGS G

Liability issue
[19] In view of the conflicting evidence given by both parties, the learned
SCJ took the approach of believing the evidence which is more probable based H
upon the evidence of all the witnesses including the silent evidence such as the
sketch plan and photographs produced (encl 10, pp 6–7).
[20] In summary, the learned trial judge accepted the version of the plaintiff
that the defendant had made a U-turn and was 70% to blame for the ensuing I
accident. This is the finding that the defendant is appealing against.
[21] After finding the defendant negligent, the learned trial judge also found
that the accident would not have occurred but for the contributory negligence
A of the plaintiff for riding his motorcycle too fast (encl 10, p 7 para 3). On this,
the trial judge found that the extent of the plaintiff ’s contributory negligence
was 30%. This is the finding that the plaintiff in this appeal seeks to reverse.
[22] The SCJ had correctly directed himself that liability ought to be
B imposed based upon whoever’s version is accepted to be more inherently
probable (encl 10, pp 7–8) and he had referred to the authorities of Noorianti
bte Zainol Abidin & Ors v Tang Lei Nge [1990] 2 MLJ 242; [1990] 2 CLJ Rep
545 (HC) and that of Krishnan a/l Perumal & Anor Ismail bin Haji Abdul Rani
& Rakan T/A Ismail bin Ent v Yang Cheng Choy & Anor [2010] MLJU
C
493; [2010] 1 LNS 436 (CA) which held that:
The litigants gave conflicting versions as to who encroached onto whose path. It is
trite law that where there are two conflicting versions as to how an accident
occurred, the best approach is to refer to independent evidence such as the
D sketch-plan, photographs and the nature of damages to the respective vehicles. On
this logical guidance suffice to refer to the cases of: San Seong Choy & Ors v Yuson
Bien [1962] MLJ 427; [1962] 1 LNS 181; Lim Ewe Teik v Ariffin bin Hussain
[1990] 2 CLJ 191; and Lim Swee Cheng & Anor v Md Kasiman bin Kasim &
Anor [1994] MLJU 332; [1995] 2 CLJ 440.
E
[23] See also Lim Chor Ching & Ors v Idris Abdul Karim & another
appeal [1998] MLJU 666; [1998] 3 CLJ Supp 145 (HC) and Sukatno v Lee
Seng Kee [2009] 3 MLJ 306; [2009] 4 CLJ 171 (CA) which held that the trial
judge has to look at the inherent probabilities of the case as to which version is
F inherently more probable than the other.
[24] The trial judge held that based upon the silent evidence and the sketch
map he believed the plaintiff ’s version (encl 10, p 9, para 3) because:
G (a) the debris of the accident and scratch marks on the road show that the
accident occurred at the lane ‘A5–A6’ on the sketch plan (see above) and
by reason of this, it tends more to support the plaintiff ’s version that the
accident occurred when the plaintiff came out from the junction
heading left and was hit by the defendant who was making a U-turn at
H the said junction (encl 10, p 7 para 2 and p 9 para 3); and
(b) the damage to the front and right of the (plaintiff ’s) motorcycle was
rather severe whereas the damage to the (defendant’s) motorcar was
concentrated at the front left and the SCJ concluded that these supports
the plaintiff ’s version.
I
[25] In other words, the trial judge had arrived at findings which are really
inferences from primary facts namely that:
(a) the debris from the accident was at the lane marked ‘A5–A6’;
(b) there were scratch marks on the road which would place the location of A
the accident;
(c) the damage to the front and right of the plaintiff ’s motorcycle was
severe; and
(d) there was damage to the front left of the defendant’s motorcar. B
[26] The trial judge made a critical finding that he believed that the collision
occurred at lane A5–A6 whilst the defendant was making a U-turn at the
junction. The corollary is that he disbelieved that the defendant was travelling
C
straight from Kampar to Teluk Intan. The reason being that the trial judge took
the view that the silent evidence in the sketch plan supports the plaintiff ’s
version more (encl 10, p 7 para 2). (Emphasis added.)
THIS COURT’S ANALYSIS AND FINDINGS

D
Liability issue
[27] Matters of finding of facts and legitimate exercise of discretion by the

courts of original jurisdiction are often not interfered with by the appellate E
courts (see: Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn
Bhd [2010] 3 MLJ 425; [2010] 1 MLRA 117; [2010] 4 CLJ 203 (CA), Master
Jaya Environmental Sdn Bhd v Pentas Flora Sdn Bhd [2020] 2 MLJ 117; [2020]
4 MLRA 137; [2020] 2 CLJ 609 (CA)).
F
[28] However, it has been settled by the Federal Court more than 44 years
ago in Quah Ooi Keat & Anor v Yew Phaik Hoon [1966] 2 MLJ 208; [1966] 1
LNS 151 that:
Secondly, I think that the distinction between specific findings of fact and findings G
which are inferences from specific facts found must be borne in mind. Where the trial
judge arrived at findings which are really inferences from primary facts, it is
important to know what those primary facts were, since the validity of such
inferences needs to be tested by the grounds which form their basis. If this is done
the appellate Court can readily see either that the inferences are irresistible or that
H
there are flaws of reasoning which had escaped attention. This is especially necessary
where there is a conflict of evidence and the evidence of one set of witnesses is preferred
to that of the other. Where, on the other hand, grounds for the inferences are not
forthcoming, one may be forgiven for thinking that they are founded on nothing
more substantial than superficial general impressions which, of course, are easily
liable to error. In this connection I would refer to the observations of their Lordships I
in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326.
A [29] This court takes judicial notice that Langkap is in the direction of Teluk
Intan and if one is travelling from the direction of Tapah, in order to get to
Langkap one would have to turn left at the junction from Tapah (see the sketch
plan above).
B [30] Applying the same test that the trial judge had directed himself, ie that
in Noorianti bte Zainol Abidin & Ors and Krishnan a/l Perumal & Anor Ismail
bin Haji Abdul Rani & Rakan t/a Ismail bin Ent this court guided by the
submissions filed by both parties and after going through the notes of evidence
in detail makes the following analysis.
C
[31] With the damage being at the front left of the defendant’s car; to the
front right of the plaintiff ’s motorcycle; to the right exhaust pipe of the
motorcycle; with no damage to the rear of the motorcycle and the injuries
D suffered was the plaintiff ’s right leg and none on his left leg:
(a) if the defendant, as he said, was coming down from Kampar and
heading towards Teluk Intan, he would be colliding with the plaintiff ’s
motorcycle from behind and not the front if the plaintiff was turning left
to Teluk Intan. If the defendant’s version is accepted it is more probable
E that the plaintiff was turning right but the plaintiff maintained he was
turning left to go to Langkap to a 7–11 shop;
(b) with the scratch marks and the debris in the slip road (‘jalan susur’)
located at ‘A5–A6’ in the inner lane of the ‘ghost island’ (in the shape of
F a triangle with lines drawn across it) it is inherently improbable that the
plaintiff was turning right and had in fact turned left towards
Langkap/Teluk Intan;
(c) the corollary is that it is more probable that the collision occurred with
the defendant coming from Teluk Intan and making a U-turn to go back
G in the direction of Teluk Intan at the time of the collision;
(d) however, the collision occurred at a junction which was not dark but had
average (‘sederhana’) lighting;
(e) the plaintiff admitted that he saw the defendant’s car and he came out of
H the junction at a speed of about 40 km/hr thinking that the defendant
would be going straight but instead, the defendant did a U-turn and
caused the collision;
(f) logically, if the plaintiff had stopped at the junction as he said he did,
I with him having seen D’s car at the junction, it is inherently improbable
that he would be travelling at 40 km/hr;
(g) the corollary is that it is inherently improbable that the plaintiff stopped at
the junction but instead was travelling at a speed of 40km/hr when he
came out of the junction making it not possible to avoid colliding with
the defendant’s car who was making a U-turn at the junction; A

(h) this would be in line with the testimony of the plaintiff that the impact
of the collision caused him to be flung to the spot marked as ‘KS’ before
being moved to ‘MS’ along ‘A5–A6’, with the debris from the accident
strewn at the place marked as ‘KS’ along A5–A6, scratch marks on the B
road at the place marked as ‘KC’ along ‘A5–A6’ and the damages to both
the vehicles being consistent with this version; and
(i) which would lead to the conclusion that the plaintiff had contributed to
the negligence of the defendant who had made a U-turn at the junction
without ascertaining that it was safe to do so. C
[32] Appellate interference is warranted where the trial judge has made a
decision which is plainly wrong. A decision is plainly wrong if it is one which
no reasonable judge could have reached. See Ng Hoo Kui & Anor v Wendy Tan D
Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020]
12 MLJ 67; [2020] 10 CLJ 1 where it was held that:
The law is clear in that the principle on which an appellate court could interfere
with findings of fact by the trial court is ‘the plainly wrong test’ principle. The
principle encompasses differing and multiple circumstances, but must necessarily E
apply, inter alia, to situations where it can be shown that the impugned decision is
vitiated with plain material errors, or where crucial evidence had been
misconstrued, or where the trial judge had so manifestly not taken proper advantage
of having seen and heard the witnesses or not properly analysed the entirety of the
evidence before him, or where a decision was arrived at without adequate judicial F
appreciation of the evidence such as to make it rationally unsupportable. This said,
the criterion that is central to appellate intervention must remain that deference to
the trier of fact is still the rule and not the exception; and the plainly wrong test
ought not to be used by the appellate court as a means to substitute the impugned
decision with its own.
G
[33] The Court of Appeal in S Quarry Sdn Bhd v Desaru Development Corp
Sdn Bhd & Ors [2019] MLJU 99; [2019] 6 MLRA 350 laid down several
instances when decisions are considered to be plainly wrong or perverse. Some
of the instances where the trial judge’s decision is perverse, are where the trial H
judge had:
(a) misdirected himself on the evidence;
(b) failed to judicially appreciate the evidence;
(c) failed to consider any material evidence; I
(d) acted on some irrelevant evidence as to render the decision wholly

erroneous;
(e) made wrong inference from facts;
A (f) misapprehended the facts; and

(g) gave reasons which are wholly unsatisfactory or contradictory of each
other.
B (See also: Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003]
2 MLJ 97; [2003] 1 MLRA 95; [2003] 2 CLJ 19; [2003] 2 AMR 357 (CA).)
[34] Premised upon the above analysis, whilst this court may have been
minded to apportion a higher percentage of contributory negligence onto the
C plaintiff for having admittedly come out of the junction at such high speed, the
percentage of liability of 30% which the trial judge had set is within the
legitimate exercise of his discretion and this court sitting as an appellate court
would not interfere with the same.
D
[35] However, there is another piece of evidence which the trial judge had
not considered at all and that is that at the time of the accident, plaintiff had no
license to ride a motor cycle, the motor cycle he was riding had no road tax and
no insurance. In other words, plaintiff should not have been on the road at all
E at the material time.
No license, no road tax and no insurance
[36] During course of cross-examination of the plaintiff (PW2), the

F following evidence came to light (encl 10, pp 50–53):
S: ... Masa kemalangan, tahun lepasya. Ada lesen motorsikal?
J: Tiada
…
G S: Tiada? Jadi tahun lepas semasa kemalangan berlaku, kamu berumur 27 tahun ya?
J: Ya, 27 tahun
S: Dan pada tahap umur 27 tahun kamu tiada lesen motorsikal, betul?
J: Betul
H S: Motorsikal itu ada insurans dan road tax ke? Cakap benar ya, dah ambil sumpah.
Ada road tax, ada insurans?
J: Tiada
…
I S: … Jadi soalan saya, setuju dengan saya bahawa sebuah kenderaan yang tidak ada
road tax dan insurans tidak sepatutnya berada di atas jalanraya. Adalah satu
kesalahan di bawah JPJ. Setuju dengan saya?
Hakim: Setuju tak?
S: Setuju
S: Berapa tahun En Ahmad menunggang motorsikal? Sejak umur berapa? A

J: Dah lama, sudah lama lah bawa.
S: Lama? Lebih kurang 10 tahun? Umur 20 tahun? Umur 17 tahun?
J: 19, 17 macam tu lah.
S: 19 tahun ya? Ok. Jadi pernah ke En Ahmad pergi ke pejabat JPJ? Ataupun ke B
sekolah memandu untuk cuba dapatkan lesen motorsikal? Mula-mula, pernah pergi
ke sekolah ujian menunggang motorsikal untuk belajar menunggang motorsikal?
Pernah pergi ke?
J: Tak.
S: Tak pernah? Dan pernah ke En Ahmad pergi untuk menduduki peperiksaan lisan C
di JPJ tentang peraturan jalanraya?
J: Tak pernah
S: Dan pernahkah En Ahmad cuba mendapat lesen menunggang motorsikal dekat
JPJ? Pergi memohon untuk dapat lesen?
D
J: Pernah
S: Pernah? Tapi tidak berjaya?
J: Ya.
E
[37] The plaintiff then continued with his testimony (encl 10, p 52) that he
was not successful in getting his motorcycle license because he had insufficient
money. However, when pressed that with him saying he has started working
and would have money, he admitted that despite that, he has yet to go and get
a license. The evidence led from the plaintiff was that he had been riding a F
motorcycle for at least eight years since he was 19 years of age without a license
until the time of the accident. And, he knew that riding one without a license,
road tax and insurance cover is against the law and in any event, ignorance of
the law is no defence. This court therefore, is driven to infer that the plaintiff
was wilfully indifferent to the dictates of the legal requirements for riding a G
motor cycle on the road.
[38] With such evidence led during the trial without any objections by the
plaintiff, this court was then confronted with the query set out in the opening
to the grounds of judgment herein, which is reproduced below: H
In a running down action, should the plaintiff who at the time of the accident had no
riding license, no road tax and no motor insurance policy be entitled to any relief from the
Court?
[39] This court undertook an analysis of the following cases in Malaysia: I
(a) in Pang Mun Chung & Anor v Cheong Huey Charn [2018] 4 MLJ 594,
which is a contract case, the Court of Appeal held at para [25] that:
As long as all the relevant facts are before the court and no new evidence is
A required, the court is in fact duty bound to take cognizance of any illegality, even
on its own motion, and even if it has not been pleaded (see Merong Mahawangsa
& Anor v Dato Shazryl Eskay bin Abdullah [2015] 5 MLJ 619) (FC) (a
contract case). (Emphasis added.)
(b) see also John Ambrose v Peter Anthony & Anor [2017] 4 MLJ 374, a
B
contract case, where Tengku Maimun JCA (now Chief Justice) said at
para [41]:
In our view, the most pertinent principle encapsulated in Merong Mahawangsa is
that the courts are bound at all stages to take notice of illegality whether ex facie
C or which later appears, even though not pleaded, and that it was contrary to
public policy that a person should be hired for money or valuable
consideration, to use his position and interest to procure a benefit from the
government.
(c) in Maimunah bte Hassan (Sebagai Wakil Harta Pusaka Rozita bte
D Khamis) & Satu Lagi lwn Marimuthu s/o Samanathan & satu lagi [1993]
1 CLJ 119 HC Dato’ Hj Mohd Noor bin Hj Ahmad J relying upon the
authorities of Tan Chye Choo and others v Chong Kew Moi [1970] 1 All
ER 266, Badham v Lambs Ltd [1945] 2 All ER 295, New India Assurance
Co Ltd v Pang Piang Chong & Anor [1971] 2 MLJ 34 (HC) and Che Wil
E v Mahmood bin Ismail [1982] 2 MLJ 354 (HC), held that a motor
cyclist is not negligent merely because he has no valid riding license, road
tax and insurance;
(d) in Chu Kim Sing & Anor v Abdul Razak bin Amin [1999] 6 MLJ
F 433; [1999] 4 CLJ 448 (HC) Abdul Malik Ishak J held that the
respondent did not have a driving license and was not wearing a crash
helmet plus the fact that the motorcycle was ridden without road tax and
insurance and was not fitted with a horn could not in law make him
negligent;
G (e) in Tineskumar Ravindran lwn Nor Shahizan Ibrahim [2018] 1 LNS
1476 (HC) Abu Bakar Katar JC following Chu Kim Seng held that the
plaintiff at the time of the accident did not have a valid driving license
cannot mean that he was negligent;.
H (f) in Siti Rohani bte Mohd Shah & Ors v Haji Zainal bin Saifiee &
Anor [2001] 5 MLJ 8; [2000] AMEJ 0048; [2001] 1 CLJ 498 (HC)
Jeffrey Tan J held that riding or driving without a valid license per se is
not negligent, ‘that person is not fair game with no rights’;
(g) in Mohd Hafizul bin Mokhtar and Anor v Mohd Zaki bin
I Kamarudin [2007] MLJU 747; [2007] 1 LNS 561 (HC), in an appeal
from the sessions court, the plaintiff did not have a driving license for
the motorcycle that he was riding and he led no evidence that he knew
the Highway Code or that he had the experience and skill to ride a
motorcycle. Mohtarudin Baki J (now JCA) held that whilst this per se is
not negligence, the court should not be sympathetic to the injuries A

suffered and need to act without fear or favour with the hope that the
attitude of blatant disregard for the rule of law will be curtailed. After
saying, ‘imagine what if the plaintiff was summoned and he had no
insurance (with no licence) to pay damages,’ His Lordship went on to
dismiss the entire plaintiff ’s claim on the premise that he had failed to B
prove his case on a balance of probabilities as is required under s 103 of
the Evidence Act 1950 and ordered that any payment made to the
plaintiff is to be repaid with interest. It is to be noted that the trial judge
in the sessions court had held that the plaintiff was guilty of
C
contributory negligence by only 10%;
(h) in Muhammad Noor Redzuan bin Misran v Muhammad Amirul Hafiz bin
Khairulazuin [2020] 10 MLJ 238; [2020] 5 CLJ 807 (HC) Awang
Armadajaya Awang Mahmud JC — based upon the maxim ex turpi
causa non oritur actio (from a dishonourable cause an action does not D
arise), a person who is a danger both to himself or anyone else for lack of
a valid driving license to drive or ride on a road should not be on the
road. It is public policy as reflected by the intention of Parliament in ss
26 and 90 of the Road Transport Act 1987 (‘the RTA 1987’). In the case
where a driver was not covered by the insurance policy by virtue of the E
fact that he had no driving license and hence, should not be on the road,
that conduct of driving a motor vehicle without a valid license was itself
an illegal act. The law cannot protect one who has no regard for the law.
If the appellant was not on the road because he was unlicensed or
without road tax, there would not be any vehicle for the respondent to F
knock into. His Lordship said:
To allow the appeal would tantamount to rewarding the appellant for not
complying with the law, or worse, to reward him for the violation of the very
law that seeks to regulate the conduct of traffic and transportation on the
road, by posing a danger both to himself and above all, to other law abiding G
users of the road. In the exercise of the court’s inherent jurisdiction of this
court pursuant to O 1A and P 92 R 4 of the ROC 20212, liability held to be
on the appellant 100%.
(i) in Lee Chee Kuan lwn Yogeswaran Sinniah & satu lagi [2019] 1 LNS H
2310 (HC) Awang Armadajaya Awang Mahmud JC similarly held
likewise;
(j) in Berjaya Sompo Insurance Bhd v Zuraida bt Hashim & Ors [2020]
MLJU 1820 Liza Chan Sow Keng JC (a contract case) — on a
declaration that an insurance policy is unenforceable because the policy I
holder did not have a valid licence, the learned JC cited with approval
the above case of Muhammad Noor bin Redzuan Misran and reliance was
also placed upon the principle that a party ought not to be entitled to
take advantage of his own wrong;
A (k) in Abdul Wahab b Jam v Abdul Wahab b Abdullah & Anor [2008] 1 PIR
31 (HC), Mohamed Apandi Ali J held that not having a valid driving
license in itself does not mean that the driver is negligent and found the
driver to be 80% liable for the accident;
B (l) in Abdul Azim bin Abdul Halim v Vinod Kannan a/l Sivajothi &
Anor [2017] 2 PIR 444 (HC) Azmi Abdullah JC held that the mere fact
a traffic rule is not being adhered to is not the sole consideration in
determining an accident and the court needs to seek the cause of the
accident in the totality of the prevailing evidence. The case of Siti Rohani
C bte Mohd Shah & Ors v Haji Zainal bin Saifiee & Anor [2001] 5 MLJ
8; [2000] AMEJ 0048; [2001] 1 CLJ 498 was referred to where the
plaintiff motorcyclist was riding without a licence and collided with the
defendant. The court found that riding without a licence, even if
wrongful, was not the cause of the accident, and therefore there was no
D contributory negligence and the court enunciated:
... riding or driving without a valid licence per se is not negligent. Perhaps
some other violations of the Highway Code, such as failure to give way to
through traffic, may enter, depending upon the facts, into the cause of the
accident. But riding or driving without a valid licence per se would not enter
E into the cause of an accident. Rather, it is the manner of the riding or driving
and or conduct on or in relation to the road that enter into the cause of a
motor accident or collision.
(m) in Yoon Fong Yin, sebagai wakil diri harta pesaka Yong Gun Ham (si mati)
F v Fazree bin Syed Majid [2020] 1 PIR 53, Hadhariah Syed Ismail J held
that the plaintiff possessing no license and road tax was not a factor in
determining the plaintiff ’s liability and ‘a traffic offender cannot be
equated with a negligent person.’ There is an editor’s note in the law
report to the effect that on appeal, the Court of Appeal dismissed the
G appeal with the decision of the High Court affirmed and at the time of
writing my grounds for this judgment, the grounds for the Court of
Appeal decision have yet to be supplied;
(n) however, I note that the Court of Appeal, in Tay Lye Seng & Anor v
Nazori bin Teh & Anor [1998] 3 MLJ 873; [1998] 3 CLJ 466 (Siti
H Norma Yaakob, Abdul Malek Ahmad and Denis Ong JJCA) relying
upon the Supreme Court case of Chua Kim Suan (administratrix of the
estate of Teoh Tek Lee, decd) & Anor v Government of Malaysia &
Anor [1994] 1 MLJ 394; [1994] 1 CLJ 321 held that the maxim of ex
turpi causa non oritur actio has a limited action in tort and a differently
I constituted bench of the Court of Appeal held in Lee Nyan Hon & Bros
Sdn Bhd v Metro Charm Sdn Bhd [2009] 6 MLJ 450; [2009] 6 CLJ 626
(Low Hop Bing, Heliliah Mohd Yusoff and Abdul Malik Ishak JJCA)
that the principle that no court will lend its aid to a man who founds his
cause of action on an immoral or an illegal act is a principle that is
applicable to all causes of action including claims in tort; A

(o) in Malaysia National Insurance Sdn Bhd v Abdul Aziz bin Mohamed
Daud [1979] 2 MLJ 29 (FC) — Raja Azlan Shah FJ (as His Royal
Highness then was) held that although the accident occurred at a time
the driver’s license was not renewed, the Federal Court held it was not B
against public policy for the insurance policy to indemnify the loss arising
from the accident because ‘Road traffic cases eg manslaughter on the road
by gross negligence, negligent driving and the like are not wilful and
culpable crimes which makes them contrary to public policy’; and
(p) our Supreme Court in the case of Chua Kim Suan (administratrix of the C
estate of Teoh Tek Lee, decd) & Anor v Government of Malaysia &
Anor [1994] 1 MLJ 394; [1994] 1 CLJ 321 in a claim in tort, speaking
through Peh Swee Chin SCJ after reviewing a number of authorities
from Singapore, UK, New Zealand and South Africa held:
D
We have in deciding so, considered as to whether we should make a
distinction between income earned from a very minor transgression of law
such as that as revealed by the facts in the instant appeal and those cases of
unlicensed hawking on the one hand and those serious crimes like drug
trafficking and armed robbery on the other hand. Such distinction in reality
turns on the question of degree of criminality of conduct. Such degree will E
not alter the basic nature of criminality of such conduct. There are other
reasons also for disregarding such distinction. There is the great practical
difficulty as to when to draw the line between such minor offences and the
more serious ones. To attempt to do so would certainly lead to a good deal of
confusion and uncertainties, a situation much dreaded by all. To attempt to F
do so is like trying to distinguish between offences against the rights
established by God and those against rights established by man. It is an
irrelevant exercise at the present times.
We have realized, of course, that in any case when the claim for dependency
is solely based on income earned from an illegal activity, the dependants, G
though completely innocent of the illegality, will suffer an injustice and the
tortfeasor, will obtain an undeserving windfall. The dependants’ interests are
thus seen to be irreconcilable with the interests of the law; the latter are, to
provide certainty of the law but yet give rise to an injustice in such a situation.
The interests of the law are beyond providing mere certainty of the law. They are H
also to protect society from illegal activities which, if allowed to pass without
judicial castigation would encourage such illegal activities, and allow the
perpetrators to set an example to fellow-citizens to regard such illegal activities
with tolerance and a desire to follow the same. The insidious consequences are not
hard to imagine. With religion losing its grip to significant numbers of society, the
interests of law in this sense would have to be rigourously upheld. We therefore are I
of the opinion that such personal interests of such dependants or other claimants
would have to be sacrificed for the greater interests of the law. (Emphasis added.)
A Jurisprudence in foreign shores
[40] Both the learned counsel for the defendant and the plaintiff brought to
the court’s attention several authorities in several Commonwealth jurisdictions
which practices common law and hence would be persuasive.
B
[41] In India, s 2(10) of their Motor Vehicles Act 1988 defines a driving
licence means the licence issued by a competent authority authorising the
person therein to drive a motor vehicle of any description and s 3(1) provides
that no person shall drive a motor vehicle in any public place unless he holds an
C effective driving license issued to him. In Rehmani Begum and Ors v Krishnan
Pal and Ors (MAC APP 957/2017) & CM Appl 39162/2017) (unreported)
the High Court in Delhi held that a claimant seeking relief has to prove
beforehand that he held a valid permit to drive at the time of the accident with
reference made to s 2(10) of the Motor Vehicles Act 1988 of India. The
D provisions of s 3(1) of the Indian Motor Vehicles Act 1988 is substantially
similar to the provisions of our s 26(1) of the Road Transport Act 1987.
[42] In Northern Ireland, s 18(1) of their Road Traffic Act 1961 provides that
a person shall not use in a public place a mechanically propelled vehicle unless
E
at that time there is in force in respect of the vehicle a test certificate commonly
known there as a Ministry of Transportation (MOT) certificate. In James
Morgan v Bryson Recycling Limited [2018] NIQB 12 the plaintiff ’s motorcar
which was parked on public road outside his house when it was collided into by
the defendant’s worker did not possess a valid MOT Test Certificate at the
F
material time and the High Court dismissed the plaintiff ’s claim as due to the
absence of this certificate, the plaintiff ’s motorcar did not have a valid
insurance coverage and was not supposed to be on the public road.
G [43] In Victoria, Australia an application to have the plaintiff ’s action for

damages for negligence struck out as he was driving his motorcycle without
being licensed was struck out, see Edwards v Weeks [1930] VLR 225.
[44] In Ontario, Canada, the Supreme Court, Appellate Division held that a
H mere failure to obtain a license does not deprive the driver of any right of action
he would otherwise have against any person who injures him by negligence, see
Godfrey v Cooper [1920] OJ No 93. A similar decision was given in Vancouver,
British Columbia, see Walker v British Columbia Electric Railways Co [1926]
BCJ No 99 where the Court of Appeal held that the absence of a driver’s license
I should [not] preclude recovery for actionable negligence, and, ‘the most skilled
are often guilty of negligence’.
Back to Malaysia A
[45] The preponderance of authorities at the High Court level held that
riding or driving without a valid license per se is not negligent and the Federal
Court in Malaysia National Insurance Sdn Bhd held that an insurance policy
will still indemnify the insured even if the insured does not have a valid driving B
license at the time of the accident. With respect, this court is of the considered
view that the Federal Court had probably decided so in keeping with the public
policy of protecting any third-party claims consonant with the Road Transport
Act 1987 (Act 333) as will be seen below.
C
[46] Unlike the driver in Malaysia National Insurance Sdn Bhd, the plaintiff
in this case never had any insurance policy at all to begin with.
[47] With respect, this court is of the view that the Supreme Court decision D
in Chua Kim Suan on a tort claim can be reconciled with the decision in Patel
v Mirza [2017] 1 All ER 191 Supreme Court, UK which was applied to claim
in contract, see Malayan Banking Bhd v Neway Development Sdn Bhd &
Ors [2017] 5 MLJ 180 (FC) but its application in a claim in tort is yet to be
seen. The ratio formulated by Lord Toulson SCJ in Patel v Mirza (‘the Patel v E
Mirza test’) is as follows:
The essential rationale of the illegality doctrine is that it would be contrary to the public
interest to enforce a claim if to do so would be harmful to the integrity of the legal system
(or, possibly, certain aspects of public morality, the boundaries of which have never
been made entirely clear and which do not arise for consideration in this case). In F
assessing whether the public interest would be harmed in that way, it is necessary (a)
to consider the underlying purpose of the prohibition which has been transgressed
and whether that purpose will be enhanced by denial of the claim, (b) to consider any
other relevant public policy on which denial of the claim may have an impact and (c) to
consider whether denial of the claim would be a proportionate response to the illegality,
G
bearing in mind that punishment is a matter for the criminal courts. (Emphasis
added.)
(See also the articles by Justice Datuk Harmindar Singh Dhaliwal (FCJ) on The
Illegality Defence after Patel v Mirza [2016] UKSC 42: A Step Forward? July
[2018] JMJ 29 and by Heng Yee and Kumara Guru Naiker on Illegality H
Defence: Judicial Trend in Malaysia [2018] 1 LNS (A) cxxviii and the recent
Court of Appeal authority of In the Court of Appeal of Malaysia (Appellate
Jurisdiction) Public Bank Bhd v Ria Realiti Sdn Bhd & Ors [2021] 4 MLJ 537,
a CA judgment dated 19 January 2021 where the Patel v Mirza test was applied
in a claim on a bank guarantee.) I
[48] Learned counsel for the plaintiff sought to rely upon the Federal Court
authority of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor
and other appeals [2021] 2 MLJ 60; [2021] 1 MLRA 505 but with respect, to
A my mind this authority would assist the defendant rather than the plaintiff
because just like the underlying policy of the housing legislation is to aid
purchasers, the underlying public policy of the Road Transport Act is for the
need for all motorised road-users to have an insurance policy to aid third party
claims.
B
[49] On lack of insurance policy, as can be seen above, at both the High
Court and at the Court of Appeal level, there is a conflict of opinions and given
the conflict, this court finds the view expressed by Awang Armadajaya Awang
Mahmud JC relying upon the principle of ex turpi causa non oritur actio as
C
refined by the Patel v Mirza test on proportionality, that ‘In the case where a
driver was not covered by the insurance policy by virtue of the fact that he had no
driving license and hence, should not be on the road, that conduct of driving a motor
vehicle without a valid license was itself an illegal act. The law cannot protect one
D who has no regard of the law’ resonates well and compelling.
[50] Parliament has deemed it fit that all motor vehicles have to be insured at
least as against third party claims whilst on the road. Laws have been enacted to
provide for this, see s 90 of the Road Transport Act 1987 (Act 333) which is
E reproduced below:
(1) Subject to this Part, it shall not be lawful for any person to use or to cause or
permit any other person to use, a motor vehicle unless there is in force in relation to
the user of the motor vehicle by that person or that other person, as the case may be,
such a policy of insurance or such a security in respect of third party risks as complies
F with the requirements of this Part. (Emphasis added.)
(2) If a person acts in contravention of this section he shall be guilty of an offence
and shall on conviction be liable to a fine not exceeding one thousand ringgit or to
imprisonment for a term not exceeding three months or to both and a person
convicted of an offence under this section shall, unless the court for special reasons
G to be specified in the order thinks fit to order otherwise and without prejudice to the
power of the court to order a longer period of disqualification, be disqualified from
holding or obtaining a driving licence under Part II for a period of twelve months
from the date of the conviction.
H
[51] The rationale is clear. Accidents can and do happen whilst using the
road whether through one’s own negligence or otherwise. With vehicles
generally constructed of hard materials such as steel, being motorised and
capable of travelling at great speed, the danger and damage they can cause to
I other road users are very real. Should any injury or damage be caused or
suffered, the wrongdoer may not be able to pay for the same and hence the
concept of the need for insurance requiring every road user using a motor
vehicle to be first armed with an insurance policy against any third-party risks.
[52] I am, therefore, of the view that any claimant who wilfully uses a motor A
vehicle without insurance should not be entitled to relief should he or she suffer
any accident. However, I would not go so far as to deny them relief altogether
as there may be circumstances that impel the use of such a motor vehicle out of
necessity for eg in an emergency in having to seek urgent medical aid or help for
one reason or another. However, unless there are exceptional circumstances for B
the use of such a motor vehicle, there should be a reduction in the relief
allowed. This is to underscore the message that whilst the claimant may not
care for him or herself, there is a price to be paid for ignoring the law passed for
the greater good of all users of our roads and in the process posing a great risk
C
to any road user they may negligently cause to suffer damages, personal injury
or even die and that these victims including their dependants may not be able
to get compensation, in whole or in part, to get on with their lives in a manner
which the law deems fit.
D
[53] It cannot be gainsaid that the concept of insurance is to pool the
resources of many to hedge against the costs of a few mishaps. The resources
take the form of the premium payable. The premium would be less if there are
more insured paying the same. It follows that if every road user were to obey the
law and pay for the premium of the motor vehicles he or she uses, the premium E
would probably go down and this would in turn benefit all road users who are
legally obliged to purchase insurance policies.
Application of the Patel v Mirza test

F
[54] On the strength of the Court of Appeal authority of Lee Nyan Hon &
Bros Sdn Bhd v Metro Charm Sdn Bhd that no court will lend its aid to a man
who founds his cause of action on an immoral or an illegal act is a principle that
is applicable to all causes of action including claims in tort and with the
plaintiff having at the time of the accident having no insurance policy, no road G
tax and no license, the court is minded to apply the Patel v Mirza test to this
action.
[55] The first consideration of the test is to consider the underlying purpose of H
the prohibition which has been transgressed and whether that purpose will be
enhanced by denial of the claim. The prohibitions that the plaintiff had
contravened this case are: (a) using a motor vehicle without having in force a
policy of insurance in respect of third party risks in contravention of s 90 of the
RTA 1987; (b) driving a motor vehicle without a driving license authorising I
him to drive a motor vehicle which in his case is a motor cycle in contravention
of s 26 of the RTA 1987; and (c) using a motor vehicle in respect of which there
is not in force a motor vehicle license, or what is commonly known as ‘road tax’
in contravention of s 15 of the RTA 1987.
A [56] I am of the opinion that a denial of the claim in whole or in part will
serve the underlying purpose of ensuring that only qualified drivers who have
undergone a competency test as to qualify for a license and who have in force a
policy of insurance against any third party risks before they are permitted to drive.
(Emphasis added.) It is not difficult to visualize the damage that can be done by
B a motorized vehicle in an accident which can cause very serious personal
injuries, just like in the instant case or even death to other road users. In the case
of personal injuries, the cost of medical care to rehabilitate the victim both
physically and mentally can be very large and if the negligent party has no
insurance to make good any award a court may order by way of damages, the
C
court’s order is only good as a paper judgment.
[57] Besides being guilty of an offence under s 23 of the RTA 1987 for using
a motor vehicle without a motor vehicle license in force, and upon conviction,
D the plaintiff can be liable to a fine not exceeding two thousand ringgit, the
revenue has been defrauded.
[58] The second consideration of the test is to consider any other relevant
public policy on which denial of the claim may have an impact. I am of the
E opinion a denial of such a claim, in whole or in part, would serve the public
policy that there will be no free lunch. It will serve to instil a sense of
responsibility to drive armed with a mentality that laws are to be obeyed at all
times.
F [59] The third consideration of the test is to consider whether a denial of the
claim would be a proportionate response to the illegality, bearing in mind that
punishment is a matter for the criminal courts. The answer to this
consideration in this case can best be answered by postulating, what if the roles
were to be reversed ie that it was the motor car driver who was without any
G policy of insurance and is incapable of meeting any monetary award to
rehabilitate the motor cyclist who had suffered serious injuries to his right leg;
how would the plaintiff/motorcyclist feel? The answer is to my mind obvious,
that a denial of the claim in whole or in part would be a proportionate response
to the illegality to imbue into all road users with motor vehicles that they must
H all help and share in carrying the risk of damages that may befall any road user
arising from their negligence and in the process assist to reduce the load of
insurance premium.
[60] Wherefore, in the circumstances that obtain in this case, although the
I defendant is more to be blamed for the accident, with the plaintiff having no
policy of insurance on foot for his motorcycle at the time of the accident, no
motor vehicle license and with him riding a motor cycle with no driving license
at all for at least eight years, thus, showing his contumacious disregard for the
law, guided by the law laid down by our Supreme Court in Chua Kim Suan
(administratrix of the estate of Teoh Tek Lee, decd) & Anor v Government of A
Malaysia & Anor, and applying the Patel v Mirza test, this court holds that in
the greater interest of the law, the liability of the plaintiff is to be increased by
30%.
[61] In the upshot, liability as between the plaintiff and the defendant is B
apportioned at 40:60.
[62] A question which caused this court some anxiety was whether with
liability of more than 50% having been cast upon the plaintiff should his claim C
be dismissed because in a civil claim the burden is upon the plaintiff to prove
his case on a balance of probabilities. However, the answer is provided by the
Court of Appeal in the case of Siti Athirah bt Mohd Sapuan v Razanatul Ain bt
Hassan & Anor [2015] 4 MLJ 359; [2015] 6 CLJ 295; [2015] 6 CLJ 295
where Mohd Hishamudin Yunus JCA speaking for the Court of Appeal held: D
... we are impelled to add here that the learned sessions court judge should not have
‘apportioned’ liability between the parties, and should not use expressions as
‘liability sebanyak 50% plaintif dan defendan 50%’ if what she had meant was that
the plaintiff was only guilty of contributory negligence and that therefore, the award
should accordingly be reduced by 50%. For, the expression used by the learned E
sessions court judge gives the erroneous impression that both the plaintiff and the
first defendant were co-tortfeasors and each equally guilty (50:50) of the tort of
negligence; whereas in truth there was only one tortfeasor who was guilty of the tort
of negligence … Contributory negligence is not the tort of negligence. One must not get
confused between the liability for the tort of negligence and liability for contributory
negligence. (Emphasis added.) F
See also the case of Nur Shaheera bt Abdullah (didakwa sebagai wakil diri harta
pusaka kepada si mati, Muhammad Nor Shahril bin Abdullah) v Suhaimi bin
Che Ismail (mendakwa sebagai bapa yang sah dan tanggungan kepada si mati,
Muhamad Azam bin Suhaimi) & Anor [2020] MLJU 1939; [2020] 1 LNS G
1670 as well as the case of Tabarani B Mohd Arsad & Anor v Chan Tenn
Yeu [1999] MLJU 126; [1999] 3 CLJ 188 (HC) where in a running down cum
personal injury claim, the plaintiff motorcyclist still succeeded in his claim even
though he was held to be the principal actor in the collision and was 75% liable
for the accident. H
[63] It is, therefore, clear that although the defendant may be held to be
principally to be blamed for the tort of negligence leading to the accident, the
liability to be apportioned to the plaintiff may exceed 50% by reason of, inter
alia, contributory negligence on the part of the plaintiff. I
[64] By analogy, this court had added another 30% of the liability to be
borne by the plaintiff in this case for the compelling reason articulated in the
Supreme Court decision of Chua Kim Suan that the interests of the law are
A beyond providing mere certainty of the law but also meant to protect society
from illegal activities which, if allowed to pass without judicial castigation
would encourage such illegal activities, and allow the perpetrators to set an
example to fellow-citizens to regard such illegal activities with tolerance and a
desire to follow the same.
B
I
Quantum issue A
[65] This court will now proceed to address the issue of quantum of
damages.
B
[66] It is this court’s view that the ex turpi causa principle as refined by the
Patel v Mirza test is to apply and, any damages, subject to proof, that is to be
awarded to such a claimant ought to be premised upon the lowest scale in the
compendium of personal injuries so as to judicially castigate such a claimant
and to discourage such illegal acts or omissions. C
[67] The remedy to a claimant who suffers as a result of the negligent act of
a defendant lies in an award of damages. The purpose is to provide monetary
compensation as far as it is possible, in order to make good the harm which has
been occasioned to the sufferer. However, it is not intended to be punitive and D
still less a reward (see: Ong Ah Long v Dr S Underwood [1983] 2 MLJ
324; [1983] 1 MLRA 154; [1983] CLJ Rep 300).
[68] In determining the appropriate quantum, the courts have been guided
by precedents in comparable cases. The amounts awarded in past cases, which E
bear reasonable comparison with the case under review, would serve as useful
guides (see: United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ
237; [1970] 1 MLRA 57). In this regard, the Revised Compendium of Personal
Injury Awards revised by the Malaysian Bar Council as at 6 July 2018 serves as
F
a very useful guide on the range of damages to be awarded in personal injury
claims.
[69] Having said that, unless the award is inordinately low or manifestly
excessive, an appellate court would be slow to interfere with the award of a trial G
judge. I shall now deal with the awards appealed against.
[70] The defendant’s submission on his appeal on quantum and in answer to

the plaintiff ’s cross appeal on quantum is only on two heads. One is that the
learned trial judge had erred on both facts and law in allowing an award for loss H
of future earnings of RM192,000 although there is conflicting or no credible
evidence that the plaintiff was working at all at the time of the accident and
two, that the 1/3 deduction of the monthly income of the plaintiff from the loss
of income, if any, ought to be maintained.
I
[71] The plaintiff on the other hand submitted that the learned trial judge
had erred in awarding only RM192,000 by using a multiplicand of only
RM1,000 per month for 12 years multiplied by 16 years when the trial judge
ought to have allowed RM2,000 per month out of the RM2,500 that the
A plaintiff was said to be earning monthly and, therefore, the plaintiff ought to be
allowed a sum of RM324,000 for loss of future earnings.
[72] The plaintiff submitted that he had suffered very serious injuries to his
right leg and foot which has yet to heal, is dirty and chronically infected with
B him continuing to suffer from a residual ulcer in his right foot and his joint
stiffness is permanent with stiffness to all the toes of the right foot. Further, in
the event the prospective bone grafting operation with llizarov external fixation
to this right leg is unsuccessful, the plaintiff will have to have his right leg below
C
his knee amputated. There will, therefore, be a complete loss of earnings for at
least a year from the month of November 2019 until November 2020 and by
reason of all these, the learned trial judge ought not to deduct 1/3 per month
against personal expenses such as food, handphone bills and the like for which
there was no proof that they were being incurred. The 1/3 deduction will
D amount to there being a double reduction. The plaintiff seeks a sum of
RM72,500 as the actual loss of income instead of the RM28,333.30 that was
awarded.
[73] From the aforesaid, it is clear that the following heads of claim for
E general damages by the learned trial judge are not in dispute:
(i) cerebral concussion: RM5,000;
(ii) open fracture distal right tibia and segmental right fibula: RM38,000;
F (iii) open fracture dislocation right first tarsometatarsal joint with medial
cuneiform bone loss: RM12,000;
(iv) open fracture right navicular bone with bone loss: RM14,000;
(v) open fracture right fourth metatarsal bone and bone fracture shaft of
G right fifth metatarsal bone: RM20,000;
(vi) open fracture of the right intermediate cuneiform bone: RM12,000;
(vii) multiple degloving wounds including degloving wounds over interior
aspect of right foot with total dorsalis pedis artery cut and multiple
H tendon, muscles and nerve cut and skin loss, and degloving wounds over
intermedial aspect of right leg with anterior tibialis tendon, extensor
hallucis tendon total cut and skin loss: RM30,000;
(viii) multiple ligaments injury over right foot: RM15,000;
I (ix) ulcer wounds and scarring over right leg and right foot: RM15,000;
(x) muscle wasting of right lower limb: RM3,000;
(xi) bone grafting: RM7,000;
(xii) pain and suffering for future surgery: RM5,000 (without interest); and
(xiii) total award with a reduction of 10% for items (ii) to (vi) above = A
RM166,400
[74] Only the following special damages and expenses were allowed by the
learned trial judge:
B
(a) costs for transport to and fro by the plaintiff ’s family to visit the plaintiff
in the Teluk Intan Hospital: RM200;
(b) costs for undergoing treatment and follow up visits at the Teluk Intan
Hospital: RM300;
C
(c) costs for medical treatment: RM472;
(d) anticipated medical treatment and operation: RM33,333; and
(e) total award for special damages: RM34,305.
D
[75] A sum of RM28,333.30 for loss of actual income and another sum of
RM192,000 for loss of future earnings were also awarded. When these two
sums for loss of income and special damages are added up it comes up to
RM220,333.30 and when this sum is added to the special damages of
RM34,305,00 it comes up to RM254,305. E
[76] Interest on the special damages at 2.5%pa from the date of the accident
until the date of judgment and interest at 5%pa on the general damages from
date of service of writ of summons until the date of judgment and 5%pa on the
judgment debt from the date of judgment until full payment were awarded. At F
70% of liability of (RM166,400 (for personal injuries including pain and
suffering) plus RM254,638.60 (for loss of actual income and future earnings
plus special damages) totalling RM421,038.60), the judgment debt favouring
the plaintiff was RM294,727.02, (see the sealed judgment in encl 10, p 2).
G
Court’s analysis on: (i) the claim for loss of future earnings; and (ii) 1/3 deduction
for actual loss of income
(i) Claim for loss of future earnings

H
[77] In his grounds of judgment (encl 10, p 19 para 6), the learned trial judge
had accepted without undertaking an analysis of the evidence that the plaintiff
was working with AYN D Touch as a general worker carrying out works to fix
and decorate wedding dais, set up tents that required much physical
movements and to move from one place to another quickly. In the I
circumstances, in this aspect, this is a non-speaking judgment requiring this
court to endeavour to make its own findings of fact, based on the evidence on
record, see Hong Yik Plastics (M) Sdn Bhd v Ho Shen Lee (M) Sdn Bhd &
Anor [2020] 1 MLJ 743; [2020] 4 CLJ 479 CA at para 23.
A [78] With due respect, the learned trial judge was taken up by the medical
condition of the plaintiff after the accident and with what he could see of the
plaintiff when the latter attended court.
[79] This court then perused the witness statement tendered by the plaintiff
B (encl 5, p 27 Q&A 16), the salary slips for four months from 1 April 2018 to
1 July 2018 (encl 6, pp 71–72) purporting to show that the plaintiff was
earning RM2,500 per month comprising a basic pay of RM2,300 and RM200
as an allowance, the cross-examination of the plaintiff (encl 10, pp 79–97) and
his re-examination (encl 10, p 102) on this aspect, the witness statement of the
C
plaintiff ’s alleged employer, PW3, Muhammad Asror bin Bukhari, (encl 5,
pp 29–31) on the alleged salary paid, his cross-examination (encl 5, pp
105–119), his re-examination (encl 5, pp 119–123) and the written
submissions of the plaintiff (encl 5 pp 68–76), the defendant’s submissions
D (encl 5, pp 124–127) the submissions in reply of the plaintiff (encl 5, p 86) and
the submissions in reply of the defendant (encl 5, pp 142–146).
[80] Having perused the aforesaid materials and in particular the evidence
on record, this court is of the view that the ground of appeal set out in the
E defendant’s Memorandum of Appeal (encl 4, p 10) that the learned trial judge
had erred in both fact and law in awarding loss of future earnings of
RM192,000 although there is inconsistent and no credible evidence led by the
plaintiff is well made out.
F [81] The starting point for assessment of damages for personal injury is, of
course, s 28A of the Civil Law Act 1956, which provides as follows:
S 28A Damages in respect of personal injury
(1) In assessing damages recoverable in respect of personal injury which does not
result in death, there shall not be taken into account —
G
(a) any sum paid or payable in respect of the personal injury under any
contract of assurance or insurance, whether made before or after the
coming into force of this Act;
(b) any pension or gratuity, which has been or will or may be paid as result of
H the personal injury; or
(c) any sum which has been or will or may be paid under any written law
relating to the payment of any benefit or compensation whatsoever in
respect of the personal injury.
(2) In assessing damages under this section —
I
(a) no damages shall be recoverable in respect of any loss of expectation of life
caused to the plaintiff by the injury;
(b) if the plaintiff ’s expectation of life has been reduced by the injury, the
Court, in assessing damages in respect of pain and suffering caused by the
injury, shall take into account any suffering caused or likely to be caused A
by awareness that his expectation of life has been so reduced;
(c) in awarding damages for loss of future earnings the Court shall take into
account —
(i) that in the case of a plaintiff who has attained the age of sixty years or B
above at the time when he was injured, no damages for such loss shall
be awarded; and in any other case, damages for such loss shall not be
awarded unless it is proved or admitted that the plaintiff and was receiving
earnings by his own labour or other gainful activity before he was injured;
(ii) only the amount relating to his earnings as aforesaid at the time when he C
was injured and the Court shall not take into account any prospect of
the earnings as aforesaid being increased at some time in the future;
(iii) any diminution of any such amount as aforesaid by such sum as is
proved or admitted to be the living expenses of the plaintiff at the time
when he was injured; D
(d) in assessing damages for loss of future earnings the Court shall take into
account that —
(i) in the case of a person who was of the age of thirty years or below at the
time when he was injured, the number of years’ purchase shall be 16; E
and
(ii) in the case of any other person who was of the age range extending
between thirty one years and fifty-nine years at the time when he was
injured, the number of years’ purchase shall be calculated by using the
F
figure 60, minus the age of the person at the time when he was injured
and dividing the remainder by the figure 2.
[82] In determining loss of future earnings, the court is guided and bound by
the principle laid down by the Federal Court in Ngooi Ku Siong & Anor v Aidi G
Abdullah [1985] 1 MLJ 30 that there must be evidence of a real and substantial
loss which must not be remote and speculative. The Court of Appeal in
Sumarni v Yow Bing Kwong & Anor [2008] 1 MLJ 608; [2008] 3 CLJ 489
decided that:
[10] For loss of future earnings, it is a post-trial loss. It was decided by the Federal H
Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30; [1984] 2 CLJ
163 ; [1984] 1 CLJ Rep 294 that ‘Future loss of earnings or loss of prospective
earnings are awarded for real assessable loss ie, loss that is capable of assessment at
the date of the trial. It must be proved by evidence and not by mere speculation ...
there must be evidence of a real and substantial loss which must not be remote and I
speculative’.
[11] This aside, this court’s decision in Looi Gnan Peng v Bay Tong Hai [2005] 1 CLJ
685, demands that all ‘elements’ in s 28A of the Act should be proved.
…
A … The rational of the Federal Court in Marappan Nallan Koundar & Anor v Siti
Rahmah bte Ibrahim is misapplied. The plaintiff cannot justify noncompliance of a
statutory prerequisite simply because there is an objection raised by the defendant
that there is no proof that it was complied with by the plaintiff. Legislation demands
that the plaintiff must fulfill certain prerequisites before she can be successful in her claim
B for loss of future earnings and failure to fulfill these are fatal to the plaintiffs claim. Here,
obviously, the plaintiff has failed to tender any evidence to show her overall health
condition but for the injury and is attempting to reverse the burden of proving this
onto the defendant for raising it. This approach not only lacks merit but also goes
against fundamental principles of law. This must be rejected.
C [14] Apart from the need to prove that she was in good health, the plaintiff must also
show that it was ‘but for the injury and that he (she) was receiving earnings by his (her)
own labour or other gainful activity before he (she) was injured’. In respect of the latter
ie, was receiving earnings by her own labour or other gainful activity before she was
injured, I think the plaintiff has successfully satisfied this. But in respect of the
former ie, ‘but for the injury’, there must be evidence to show that but for the injury
D
she is not able to earn in the future. This qualification of not being able to earn in
the future must be read as a consequence to ‘but for the injury’ to give full effect to
s. 28A (2) (c ) of the Act which is basically intended to cater for loss of future
earnings as a result of personal injury. So even if the plaintiff has proved that she was
in good health but for the injury, she still has to prove that because of this she is not
E able to earn in the future. On this requirement, case law demands that there must be
evidence of real substantial assessable loss ie, loss that is capable of assessment at the date
of trial, and this must be proved by evidence, not by mere speculation and it should not
be remote — Ngooi Ku Siong & Anor v Aidi Abdullah. (Emphasis added.)
F [83] On the evidence that was produced, it is clear that:

(a) the plaintiff (PW2) could not answer whether he had any familial
relationship with his employer (encl 10, p 81); had difficulties in
remembering the name of his employer who was the one and only other
G person working together with him. In the notes of evidence, during
cross-examination (encl 10, p 82) he said as follows:
KGW: Berapa boss yang ada di kedai itu?
SP2: Satulah
H KGW: Satu? Siapa dia?
SP2: Saya lupalah nama
SP2: Lupa saya, dia punya name.
KGW: Lupa nama?
I
SP2: Ya
(b) in his police report (encl 6, p 16) made on 17 August 2018, the plaintiff
said he worked in a ‘bengkel’ (workshop) but under cross-examination
(encl 10, pp 84–91), he could not make up his mind as to whether he
worked in a workshop, a ‘stor’ (store); a ‘kedai’ (shop) or a ‘gerai’ (stall). A

He said that the size of the alleged store is about half and then changed
his mind to be a quarter the size of the court-room. He also had
difficulties with where is the location of this workshop/store/shop/stall
that he worked in. This inconsistency is compounded by him later
saying that the place he worked in is located near the shop of his B
employer, suggesting there are two different places, and the shop turned
out to be a lot provided by the local council. He vacillated on the
location of the store to be near the shop or within the shop (encl 10,
p 90). His alleged employer, (PW3) later testified that the store is half
C
the size of the court room and the store is in his house! (encl 10, p 111):
KGW: Dan stor ini berada di mana? Kedudukan stor ini berada di mana?
Kawasan stor ini di mana kawasannya?
SP2: Dekat kedai lah
D
KGW: Dekat kedai? Saya difahamkan tempat perniagaan ini adalah gerai
majlis perbandaran
SP2: Yelah
KGW: Stor dekat mana? E
SP3: Stor dekat rumah
(c) when pressed on the contents of the alleged store of indeterminate
location, he testified that there are tents, wedding dais and related
materials (encl 10, p 88) but his alleged employer testified that in his F
shop he has only about ten pieces of wedding dress (encl 10,
pp 109–110). In fact, the learned trial judge had occasion to comment
that ‘Nanti pusing-pusing saya tak dapat jawapan’;
(d) as for his alleged salary of RM2,500 said to be proved as per the four G
pay-slips purportedly signed off by him at the part ‘EMPLOYEE’s
SIGNATURE’ (encl 6, pp 71–72), the plaintiff said, inter alia, (encl 10,
pp 92–93) as follows under cross-examination:
KGW: Ok. Dia akan beri slip ini, dan kamu akan tandatangan?
H
SP2: Tak
KGW: Tak tandatangan?
SP2: Slip tak terima
KGW: Slip tak terima, jadi dia cuma bagi gaji sahajalah? I
SP-2: Ya
KGW: Jadi kamu langsung tak diberi apa-apa slip gaji?
SP2: Tak ada
A KGW: Tuan, saya rujuk ... ada dokumen ini? Warna hijau? Ada? Tengok
mukasurat 17–17 ada?
SP2: Ada
Dan mukasurat 18? Tengok mukasurat 18 ya. Pernah dokumen ini?
B SP2: Tak pernah. Pertama kali nampak kan?
…
KGW: Tengok bawah ini. Ada tandatangan kamu?
SP2: Bukan
C
(e) on how his alleged monthly salary said to have to been paid to him, the
plaintiff said it was by ‘Cash lah’ (encl 10, p 92) and he was not required
to sign anything to show that he had been paid (encl 10, pp 92–93):
KGW: Awal bulan dia bagi cash RM2,500. En Ahmad tak sign apa-apa?
D
SP2: Dia hanya.
KGW: Bukan. Salinan bukti oleh majikan kepada kamu untuk menyatakan
bahawa kamu sudah terima gaji sebanyak RM2,500. Ini dia ada beri kamu.
E SP2: Dia hanya beri saya duit saja.

(f) on the next critical issue of where he keeps the cash, the plaintiff testified
that he banked it (encl 10, p 94). (Emphasis added.) He agreed that there
will be bank records and if he goes to his bank, he will be able to get
records that the money has gone into his bank account. He did not have
F the bank-in slips of his bank which he said was CIMB (encl 10, p 95)
and he banked in parts of his salary for March, April, May and June in
the region of about RM1,500 every month. He agreed that he could
obtain a copy of the bank statement and produce it (encl 10, p 96):
G KGW: Jadi kamu boleh pergi ke bank pesan satu penyata untuk melihat duit
dalam bank. Boleh?
SP2: Boleh
KGW: Dan kemukakan pada tarikh yang akan datang?.
H SP2: Uhuh
KGW: Sebab ini adalah bukti paling kukuh kamu memang terima duit.
Faham saya?
SP2: Ya
I KGW: Itu adalah bukti yang Mahkamah nak. Faham ya?
SP2: Ya.
(g) as it turned out, the plaintiff did not produce his bank statement which he
said he has;
(h) under cross-examination, the plaintiff ’s alleged employer, PW3, came A

with the story that he makes about RM7,000 a month. From this he
drew RM2,000 for both his wife and he. He pays the plaintiff RM2,500
and adamantly maintained this story (encl 10, p 119) although it was
put to him that it was incredible that he would pay his general worker
more than both he and his wife (who was his ‘silent-partner’) being the B
two employers combined (encl 10, pp 112–113):
KGW: Jadi keuntungan pendapatan kamu dan isteri 2 orang adalah kurang
daripada gaji seorang pekerja?
SP2: Ya C
(i) as it turned out during further cross-examination (encl 10, pp 113–114

and 116–117) PW3 said that he did not make any statutory
contributions for the plaintiff towards the Employees Provident Fund
and Socso and neither did he have any income tax returns to show for D
the business under the name of ATYN D Touch which is said to be the
plaintiff ’s employer. Although he admitted that he was obliged to
inform the Lembaga Hasil Dalam Negeri of his income from AYTN D
Touch, he testified that he did not; and
E
(j) it was pointed out by the defendant in his submissions (encl 5, p 127)
that the business entity of ATYN D Touch did not have the approval to
run a business for the period of 10 January 2018 (encl 6, p 65) until
3 February 2019 (encl 6, p 68). This period coincided with the period
that the plaintiff was alleged to be working for this business entity. F
[84] From the above analysis of the evidence, this court finds that the story
presented by the plaintiff that he was working for AYTN D Touch at a salary of
RM2,500 to be incredible. The plaintiff could have easily presented his bank
statement, which he said he could, to prove that he had been receiving G
payments but he did not. An adverse inference ought to have been drawn
against him by the trial judge pursuant to s 114(g) of the Evidence Act 1950
which is reproduced below:
114 The court may presume the existence of any fact which it thinks likely to have H
happened, regard being had to the common course of natural events, human
conduct, and public and private business, in their relation to the facts of the
particular case.
ILLUSTRATIONS
The court may presume: I
…
(g) that evidence which could be and is not produced would if produced be unfavourable
to the person who withholds it.
A [85] There is a plethora of authorities on the application of s 114(g)

Evidence Act 1950 and it would suffice if the court were to cite one recent
Court of Appeal authority of Kumpulan Prasarana Rakyat Johor Sdn Bhd v
Emercon Bina Sdn Bhd and another appeal [2021] 1 MLJ 629; [2020] 1 LNS
1299 which held as follows:
B
The learned JC in our view had correctly invoked the adverse inference under s
114(g) Evidence Act 1950 that the evidence by Dato Amirullah, if tendered, would
be adverse or unfavourable against the defendant (Juahir bin Sadikon v Perbadanan
Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627; [1996] 4 CLJ 1). To refrain
calling a material and important witness who was available and could be contacted,
C tantamount to a suppression of material and important evidence.
[86] The learned trial judge ought to have in the circumstances, invoked an
adverse inference against the plaintiff that if the bank statement or statements
of the plaintiff had been tendered, it would be adverse or unfavourable against
D
the plaintiff in that the statement or statements would show that there were no
such payments made to him.
[87] With respect, the learned trial judge: (a) misdirected himself on the
E evidence; (b) failed to judicially appreciate the evidence; (c) failed to consider
material evidence; (d) was probably unduly swayed by the medical condition
presented by the plaintiff in court which is irrelevant on the issue of whether
the plaintiff was in fact gainfully employed as to render the decision wholly
erroneous; and (e) misapprehended the facts and by reason thereto, appellate
F interference is warranted. Based upon the evidence and the adverse inference
that ought to have been drawn, this court finds that there was no credible
evidence produced to prove that the plaintiff was receiving earnings by his own
labour or other gainful activity before he was injured as is statutorily required
pursuant to s 28A(2)(c)(i) and (ii) of the Civil Law Act 1956.
G
[88] Accordingly, the award on loss of future earnings is set aside altogether.
The loss for actual income would have been set aside as well save that there was
no appeal against this specific award, see Ann Joo Steel Bhd v Pengarah Tanah
dan Galian Negeri Pulau Pinang & Anor and another appeal [2020] 1 MLJ
H 689; [2019] 9 CLJ 153 (FC).
[89] As for the loss in earning capacity, the court agrees with the submissions
of the defendant that based upon the medical reports produced (encl 6, p 57
produced by the plaintiff and p 80 produced by the defendant), on the
I evidence that obtained at the trial with rather similar follow-up treatment
having been recommended, there is no mention that the plaintiff cannot work
if the recommended follow-up treatment is undertaken.
[90] The Court of Appeal in Sumarni v Yow Bing Kwong & Anor also decided
that: A
From what is disclosed of her medical condition, she is not totally immobile or
suffering from some severe permanent impairment that would restrict her
movement to the extent that she can neither work or is forced to seek a job that pays
her less than what she was receiving before the accident. Without reasonable
certainty as to her inability to secure a job in the future or that she would be B
receiving less than what she got before the accident, this claim by the plaintiff for
loss of future earnings must fail.
[91] With this court having found that there was no evidence of a real and
C
substantial loss as required by s 28A(2)(c)(i) and (ii) of the Civil Law Act 1956
and premised upon the Federal Court authority of Ngooi Ku Siong & Anor v
Aidi Abdullah, this court is obliged to hold that this claim for loss of earning
capacity must similarly fail.
D
(ii) 1/3 deduction for actual loss of income
[92] With this court having found that the plaintiff was not receiving
earnings by his own labour or other gainful activity before he was injured at the
time of the accident, there should not have been any award at all for loss of E
actual income and a claim for the same is an abuse of process of court. However,
as there was no appeal by the defendant against the award for loss of actual
income, this court will not disturb this part of the award.
CONCLUSION
F
[93] On the issue of liability, the court denied the plaintiff his full
entitlement to 70% liability on the part of the defendant for the reasons
aforesaid. Accordingly, the defendant’s appeal was allowed, with the decision of
the sessions court varied with liability to be apportioned as between defendant G
and plaintiff at 40:60.
[94] On the issue of quantum, the defendant’s appeal against loss of future
earnings was allowed and the decision by the sessions court on this award was
set aside. H
[95] On the issue of both liability and quantum, the plaintiff ’s cross-appeal
was dismissed.
[96] With the defendant having succeeded substantially in his appeal as well I
as against the plaintiff ’s cross-appeal, the decision of costs by the sessions court
was set aside with costs of this appeal by the defendant and the cross-appeal by
the plaintiff to be borne by the plaintiff. For the avoidance of any doubt, there
is no order for costs in the court below.
A [97] The court would conclude that in a running down action, the plaintiff
who at the time of the accident had no riding license, no road tax and in
particular, no policy of insurance against third-party risks ought not to be
entitled to relief, in whole or in part as may be determined by the court based
upon the considerations that obtain in the Patel v Mirza test. And, in the
B circumstances that obtained in this case, this court denied the plaintiff a further
30% of what he would have been entitled to.
[98] After hearing parties on costs, the court awarded RM10,000 subject to
allocatur to the defendant to be paid by the plaintiff.
C
Appeal allowed and cross-appeal dismissed, with costs.
Reported by K Selvaraju
D

Mohd Shahril Bin Abdul Rahman V Ahmad Zulfendi Bin Anuar

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Mohd Shahril Bin Abdul Rahman V Ahmad Zulfendi Bin Anuar

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36 Malayan Law Journal [2021] 12 MLJ

Mohd Shahril bin Abdul Rahman v Ahmad Zulfendi bin A

HIGH COURT (IPOH) — CIVIL APPEAL NO AA-12BNCvC-2–01 OF B

Tort — Road accident — Appeal against quantum and liability C

by the medical condition presented by the plaintiff in court which is A

[Bahasa Malaysia summary

G (2) Walaupun defendan seharusnya lebih banyak dipersalahkan atas

dinyatakan dalam memorandum rayuan defendan bahawa HMS telah A

A Road Traffic Act 1961 [IR] s 18(1)

Su Tiang Joo JC:

[7] Dissatisfied, by notice of appeal dated 17 May 2021, the plaintiff

Diametrically opposing stories I

No eye-witness to the accident

Sketch plan and key

H Investigating officer’s testimony

TRIAL COURT’S FINDINGS G

THIS COURT’S ANALYSIS AND FINDINGS

[27] Matters of finding of facts and legitimate exercise of discretion by the

the defendant’s car who was making a U-turn at the junction; A

(d) acted on some irrelevant evidence as to render the decision wholly

A (f) misapprehended the facts; and

No license, no road tax and no insurance

[36] During course of cross-examination of the plaintiff (PW2), the

S: Berapa tahun En Ahmad menunggang motorsikal? Sejak umur berapa? A

[39] This court undertook an analysis of the following cases in Malaysia: I

not negligence, the court should not be sympathetic to the injuries A

applicable to all causes of action including claims in tort; A

A Jurisprudence in foreign shores

G [43] In Victoria, Australia an application to have the plaintiff ’s action for

Application of the Patel v Mirza test

[70] The defendant’s submission on his appeal on quantum and in answer to

(i) Claim for loss of future earnings

F [83] On the evidence that was produced, it is clear that:

worked in a workshop, a ‘stor’ (store); a ‘kedai’ (shop) or a ‘gerai’ (stall). A

E SP2: Dia hanya beri saya duit saja.

(h) under cross-examination, the plaintiff ’s alleged employer, PW3, came A

(i) as it turned out during further cross-examination (encl 10, pp 113–114

A [85] There is a plethora of authorities on the application of s 114(g)

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